People v. Sutter

• Docket Number: F086138
• Decision Date: 28 December 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. BRANDON CARL SUTTER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent,
v.
BRANDON CARL SUTTER, Defendant and Appellant.

F086138

California Court of Appeals, Fifth District

December 28, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F17904754. Alvin M. Harrell III, Judge.

Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

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INTRODUCTION

In 2017, appellant and defendant Brandon Carl Sutter (Sutter) was convicted after a jury trial of premeditated attempted murder with firearm and great bodily injury enhancements, and possession of a firearm by a felon. He was sentenced to life with the possibility of parole for premeditated attempted murder and 25 years to life for the attached firearm enhancement.

In 2023, the trial court denied Sutter's Penal Code^[1] section 1172.6 petition and found he failed to make a prima facie case for resentencing.

On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Sutter submitted a supplemental brief. We address his contentions and affirm the trial court's denial of his petition.

FACTS^[2]

"Around June 2016, Francisco Martinez's mother allowed Sutter, whom Martinez had known for at least two years, to move into a house she owned on Mayfair Drive in Fresno. Although Sutter was supposed to keep other people out of the house and

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maintain it, he 'thrashed' it and he allowed people to come and go all the time. Sometime after December 2016, Martinez began telling Sutter he had to move, but Sutter did not move.

"On the evening of August 14, 2017, Martinez received a text from Sutter stating that he wanted to get some boxes and he wanted Martinez to go to the Mayfair Drive house. Martinez, however, did not go to the house until the next morning at approximately 7:00 a.m. Martinez knocked on the door, but nobody answered. He then went to the window of the room where Sutter stayed and knocked on the window. Eventually someone inside told Martinez to go to the front of the house. Martinez went to the front door and pulled on it, but it did not open. The door then opened, and Sutter pointed the barrel of a homemade shotgun at Martinez's face and ordered him to shut up, get in the house, and sit down. Martinez turned around and was about to step off the porch when he heard a gunshot that struck him on the back and he fell to the ground. Sutter came out of the house with his father and he began saying Martinez had threatened his family, that he should stomp Martinez, and that it was a good thing he did not kill him. Although Martinez's legs were paralyzed he managed to turn himself over and he pleaded with Sutter not to kill him. However, at that point, Sutter no longer had the shotgun. When Martinez stated, 'God, don't let me die,' Sutter told him there was no God and that after he let Martinez bleed to death, Sutter was going to kill Martinez's mother if she did not sign the house over to him. Despite his injuries, Martinez was able to call 911 on his cell phone.

"Diana Perez heard the gunshot and called 911. She also saw a bald man walk into the yard and look at something on the ground that was not visible to her because her vision was partially obstructed, and a second man carry away a black backpack.

"Fresno County Sheriff's Deputy Manuel Chavez responded to the scene at approximately 7:15 a.m. As Chavez and two other deputies approached the house, he

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saw Martinez lying on the ground and Sutter start running away from the deputies. Sutter complied with the deputies' commands to get on the ground and they handcuffed him.

"During a warrant search of the house on Mayfair Drive, the deputies found a black backpack in a refrigerator. The backpack contained a homemade shotgun that was made from two metal tubes and that contained an expended shotgun shell in one end and a live round in the shotgun's vertical grip. Three to four additional live shotgun rounds were found in a nylon bag that was inside the backpack.

"The shotgun blast severed Martinez's spinal cord, leaving him paralyzed from the chest down. He also suffered internal bleeding in his chest cavity and into one of his lungs." (Sutter, supra, F076910.)

PROCEDURAL BACKGROUND

On December 18, 2017,...